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  1. #1
    Join Date
    Jul 2019
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    2

    Default Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnest $

    My question involves real estate located in the State of: Utah

    I'm in process of purchasing a home and, after due diligence, I found the retaining wall to the west of the property (the parcel I am purchasing is on the uphill side) is failing. I've spoken with the neighbor and they claim the failure occurred recently when there was new concrete poured on the parcel I am purchasing for the driveway that runs along that retaining wall and leads to a newly built garage (as well as the floor in that garage). The wall in question does appear to be on the neighbor's property as well as at least a foot of the width of the driveway although no survey has been done. The neighbor is of the opinion that the owner of the property I am purchasing is liable to do the repairs (the concrete forms are still there and the neighbor's fence has not been reassembled as promised). The owner says he "shored up his side" and won't touch the retaining wall. The driveway extends all the way to the west edge of the property and covers the retaining wall (where it is not falling over). Prior to the garage being built the driveway was also this wide. The situation with the wall was not found by my inspector, and the seller answered "no" to all questions about awareness of earth movement or any property encroaching on neighboring property.

    I actually would still like to buy the house, but want the seller to pay to rectify the situation (or I hold money back in escrow to take care of it). Past interactions make me think he is unlikely to agree to this. If he doesn't, can I pull out and still get my earnest money back based on his lack of proper disclosure? I'm supposed to sign in a few days.

  2. #2
    Join Date
    Oct 2016
    Posts
    3,129

    Default Re: Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnes

    I would talk to a Utah lawyer that deals with real estate transactions.

    They can look at the disclosure that was signed by the seller.

  3. #3
    Join Date
    Mar 2013
    Posts
    17,036

    Default Re: Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnes

    If he doesn't, can I pull out and still get my earnest money back based on his lack of proper disclosure? I'm supposed to sign in a few days.
    Closing in a few days? That means you are beyond your inspection period contingency and can't rely on that.

    You can certainly back out but if you have any hope of getting your earnest money back I suggest you have your purchase contract and the disclosure reviewed by an attorney who can advise you of your options. Do that today.

    Do not rely on anything your realtor, the seller's realtor, or the seller tells you or promises you. They will all lie to you to get you to sign.

  4. #4
    Join Date
    Nov 2013
    Posts
    6,324

    Default Re: Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnes

    Quote Quoting Tricia
    View Post
    My question involves real estate located in the State of: Utah

    I'm in process of purchasing a home and, after due diligence, I found the retaining wall to the west of the property (the parcel I am purchasing is on the uphill side) is failing. I've spoken with the neighbor and they claim the failure occurred recently when there was new concrete poured on the parcel I am purchasing for the driveway that runs along that retaining wall and leads to a newly built garage (as well as the floor in that garage). The wall in question does appear to be on the neighbor's property as well as at least a foot of the width of the driveway although no survey has been done. The neighbor is of the opinion that the owner of the property I am purchasing is liable to do the repairs (the concrete forms are still there and the neighbor's fence has not been reassembled as promised). The owner says he "shored up his side" and won't touch the retaining wall. The driveway extends all the way to the west edge of the property and covers the retaining wall (where it is not falling over). Prior to the garage being built the driveway was also this wide. The situation with the wall was not found by my inspector, and the seller answered "no" to all questions about awareness of earth movement or any property encroaching on neighboring property.

    I actually would still like to buy the house, but want the seller to pay to rectify the situation (or I hold money back in escrow to take care of it). Past interactions make me think he is unlikely to agree to this. If he doesn't, can I pull out and still get my earnest money back based on his lack of proper disclosure? I'm supposed to sign in a few days.
    Without a survey you are just guessing. And guessing will get you nowhere. How long has the retaining wall been there? How long has the driveway been there?

    Utah has a boundary by Acquiescence law. If these structures have been there for more than 20 years, your seller may have rights to the property and may be responsible for the repairs.

    Postpone the closing until you can have a survey done and consult with a local attorney. Your hast may cost you plenty.

    If these issues are only now coming to light, what due diligence are you speaking of?

  5. #5
    Join Date
    Jul 2019
    Posts
    2

    Default Re: Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnes

    By due diligence, I'm speaking of the inspection contingency period. I was wondering if boundary by acquiescence may apply in this case. I don't know if they've been there for 20 years because I haven't had a chance to investigate at this point. I found the problem yesterday when looking to see where I'd place a gate for my dog.

    I was actually wondering if the seller, by adding the weight of the new concrete/garage would have liability for the repairs regardless of property line since the neighbor claims this action precipitated the failure.

  6. #6
    Join Date
    Oct 2006
    Posts
    15,493

    Default Re: Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnes

    Quote Quoting Tricia
    View Post
    By due diligence, I'm speaking of the inspection contingency period. I was wondering if boundary by acquiescence may apply in this case. I don't know if they've been there for 20 years because I haven't had a chance to investigate at this point. I found the problem yesterday when looking to see where I'd place a gate for my dog.

    I was actually wondering if the seller, by adding the weight of the new concrete/garage would have liability for the repairs regardless of property line since the neighbor claims this action precipitated the failure.
    Its possible that the seller might have that liability. Again, you need a consult with a local real estate attorney. It's quite possible that forfeiting your real estate deposit might be in your best interest anyway, rather than accepting any liability for the situation now.

  7. #7
    Join Date
    Nov 2013
    Posts
    6,324

    Default Re: Seller Failure to Disclose Retaining Wall Issue-Can I Pull Out and Keep My Earnes

    Quote Quoting Tricia
    View Post
    I was actually wondering if the seller, by adding the weight of the new concrete/garage would have liability for the repairs regardless of property line since the neighbor claims this action precipitated the failure.
    There is no way for anyone other than an engineer to determine if the construction of the concrete and garage (and the excavation to build both perhaps without proper support during construction) might have caused the failure of the retaining wall. We don't know if the retaining wall supports your seller's property or supports the neighbor's property. Who built the retaining wall and when was it built.

    Did your seller obtain the proper permits to construct the driveway and garage and where all the necessary inspections done during construction? Have you checked with the local jurisdiction?

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